Elena Kagan's Confirmations Are About Whether She's Really John Roberts or Thurgood Marshall

The Kagan Hearings

Elena Kagan's Confirmations Are About Whether She's Really John Roberts or Thurgood Marshall

The Kagan Hearings

Elena Kagan's Confirmations Are About Whether She's Really John Roberts or Thurgood Marshall
The law, lawyers, and the court.
June 29 2010 8:38 PM

The Kagan Hearings


There is something achingly familiar about Monday afternoon's opening day of Solicitor General Elena Kagan's Supreme Court Senate confirmation hearings. The talking points on both sides—"liberal judicial activist" and "justices who understand real people"—are so overused that at first you think you just might be listening to the mix tape Chief Justice John Roberts prepared for Justice Samuel Alito's hearings. It's not just Kagan who's being interrogated, though: It's Thurgood Marshall, John Roberts, Clarence Thomas, and Sonia Sotomayor. And it's not just that Republican and Democratic senators are applying the same boring old scripts to a brand new nominee. They're actually applying the same boring old scripts to the same boring old nominees.

If the hearing room feels a little bit airless, it's partly because it's full of ghosts. But it's also that the nominee herself has simply chosen not to bring any heat at all to the proceedings. She's given the Republicans on the judiciary committee nothing to hold fast to, and so there's none of the last confirmation hearing's crackling outrage about reverse racism or identity politics this time around. When Sen. Chuck Grassley, R-Iowa, suggests Kagan had been "steeped in deeply held liberal principles," the contrast between this nominee and the last one is laid right there: Kagan is, at worst, a cup of green tea, while Sotomayor was a potentially lethal margarita. And in her own opening remarks, almost entirely devoted to thanking the many jurists, mentors and friends,  who have come before her, General Kagan plays the Roberts mix tape one more time. She will be "modest" and deferential" and "limited" and also "respectful" and have an "open mind." But she also explains (it's subtle, but it's in there) that the reason her mentor, Thurgood Marshall, "revered" the court was because "in his life, in his great struggle for racial justice, the Supreme Court stood as the part of government that was most open to every American."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.


Yet the ghost of Marshall himself comes in for tremendous abuse today at the hands of Republican members of the committee. Jeff Sessions, R-Ala., starts the ball rolling by accusing Kagan of having clerked for "a well-known liberal activist judge." John Kyl, R-Ariz., tears into Kagan for respecting Marshall's emphasis on protecting the underdog and says she "enthusiastically embraces" Marshall's philosophy by labeling it a "thing of glory." Not to be outdone, John Cornyn, R-Texas, piles on with this: "[I]t is more about his judicial philosophy [is] what concerns me, and this has already been mentioned: it is clear he considered himself a judicial activist and was unapologetic about it." Having alienated every minority in America with their weird "wise Latina" obsession last year, Republicans are determined to use this year's hearing—this time featuring a white nominee—to scare off the rest.

But if the Republican members are gunning for dead judicial activists, the Democrats on the committee have trained their sights on some living ones. It was sometimes difficult to tease out the common liberal theme of last year's confirmation battle, but today it is crystal-clear: Democrats really, really hate John Roberts. Committee Chairman Pat Leahy, D-Vt., launches the first attack on the Roberts Court just 10 minutes into the hearing, complaining about "conservative judicial activism" and the Citizens United decision: "Five conservative justices rejected the court's own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections." (At which point Sam Alito, wherever he was, stood up in his sweatpants and mouthed at the TV screen, "That's not true!!!")

Sheldon Whitehouse, D-R.I., and Al Franken, D-Minn., have become two of the most persuasive constitutional voices on the committee, tag-teaming the sound bytes, with Whitehouse today staking out a high-brow, poetic defense of Alexander Hamilton's model judiciary while Franken bores down on the broken seatbelts and highways and healthcare that result from a pro corporate judiciary. Franken and Whitehouse have become the Sam and Diane of the Senate Democrats. They both really hate the Roberts Court. Scoffs Whitehouse, "For all the talk of 'umpires' and 'balls and strikes' at the Supreme Court, the strike zone for corporations gets better every day." Franken is even more cut–and-dried: "With few exceptions, whether you're a worker, a pensioner, a small-business owner, a woman, a voter, or a person who drinks water, your rights are harder to defend today than they were five years ago."

Now if I were a gambling woman, I'd wager that most Americans today are not seething with unspoken rage at Thurgood Marshall. And I might wonder at the wisdom of blaming him for what ails this country in the summer of 2010. The Democrats on the committee are, for their part, gambling that if they all speak together and repeat themselves often enough, they might finally persuade the nation that the Roberts Court is not working in their best interests. Will it stick? It hasn't so far, but it may still be safer than demonizing one of the lions of the modern civil rights movement.

That the GOP is a party in dire need of a new metaphor is perhaps most clear today when Cornyn uses the full force of his moral authority to scold Kagan that "liberty is not a cruise ship full of pampered passengers. Liberty is a man of war, and we are all the crew." I think the one thing we can all look forward to tomorrow is a fuller explication of this piece of jurisprudential philosophy.

As the nominee takes pains not to look too pained today, the reason Marshall and Roberts are the ones on trial here is also quite plain: Republicans fear that, in this confirmation hearing, Kagan is pretending to be just what Roberts pledged to be (temperate, centrist, and humble), but that once she takes the bench, she will become Marshall (legendary, visionary, liberal). And in a weird piece of symmetry, this Republican fear is the Democrats' most fervent hope. And so all of us will become, at least for the next four days, a sort of cruise ship of pampered passengers, tacking back and forth between John Roberts on one shore and Thurgood Marshall on the other. And Kagan will turn the wheel, squint at the spray, and looking just mildly seasick, steer us right down the middle.